15th April, 2015
Are you a Victim of the Employment Tribunal when it comes to compensation?
Is a Claimant likely to have compensation for victimisation claims reduced in an employment tribunal?
In the case of Das v Ayrshire & Arran Health Board the answer is yes.
Victimisation is legislated under the Equality Act 2010 (EqA 2010). The definition of victimisation is when a person subjects another to a detriment as a result of a protected act, which includes giving evidence, raising a grievance or bringing proceedings under the EqA 2010 such as a protected disclosure.
Usually compensation for these matters in an employment tribunal is based on an element of loss and injury to feelings. The employment tribunal must take into account the position the claimant would have been in, if the victimisation had not taken place.
In the Case of Das v Ayrshire & Arran Health Board however, Doctor Das made a protected disclosure over what he believed to be a misdiagnosis of a patient by another consultant in 2006, and had also made several other allegations of racial discrimination.
In 2010 Doctor Das applied for a role as a specialist doctor. He was given an interview but was not offered the position and was told he had performed badly at the interview. Doctor Das issued tribunal proceedings against the board’s decision and stated that the decision was based on the protected disclosure he made in 2006 and the racial discrimination allegations he had made in the form of a grievance. This dispute was settled by judicial mediation.
In 2012 Doctor Das applied for another position as a clinical teaching and research fellow post. This role was a low level post and was not expected to appeal to a specialist doctor. Doctor Das was in fact the only applicant. The board interviewed him with as little knowledge of Doctor Das’s previous experience as possible. However, prior to the interview the board decided to withdraw the role before subsequently making an appointment to the post following a reorganisation.
Doctor Das issued tribunal proceedings and was compensated for loss of opportunity as the tribunal concluded that he would have had a 10% chance of successfully securing the role, therefore his claim of victimisation was upheld. The employment tribunal reduced his compensation by 90% as there were no absolute guarantees that Doctor Das would have been successful in securing the role, as in the past he had performed badly at interviews. The turning point of this appeal was that the Respondent was prepared to appoint no one rather than someone they did not believe was suitable for the role.
Doctor Das appealed the tribunal’s decision stating that the decision to reduce the compensation was perverse. This claim was denied as was the Respondent’s counter appeal stating the amount awarded was too high.
For further information and advice on victimisation or protected disclosure, please contact Helen Watson on 01244 405565 or send an email to [email protected]
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